Deal made over Capitol gatherings: Groups of 13 or more would need permit

Oct. 8, 2013

Written by

Matthew DeFour

Wisconsin State Journal

MADISON — The state Department of Administration announced an agreement with civil rights advocates Tuesday meant to resolve a dispute over groups protesting at the Capitol.

As part of the settlement, groups of 12 or fewer would be allowed to gather at the Capitol without state review. Larger groups would be required to seek a permit or use a new advance reservation system that doesn’t require a permit.

The new rules would free larger gatherings, such as the ongoing noontime protest against Gov. Scott Walker known as the Solidarity Singalong, from assuming liability for the actions of its participants. Rather than filling out a permit-request form, they can make a reservation in person, by phone or by email on a first-come, first-served basis starting now.

The settlement stipulates that the state can manage state buildings and have a permitting process under state law.

The state also must pay $88,270 in lawyer’s fees to the American Civil Liberties Union of Wisconsin, which brought the lawsuit on behalf of Michael Kissick, an assistant professor at the UW-Madison medical school.

“The permit process has been repeatedly upheld as constitutional by the courts and today’s settlement demonstrates ACLU’s agreement with the process as well,” DOA Secretary Mike Huebsch said in a statement. “We have taken reasonable steps to ensure all visitors and citizens can enjoy our beautiful Capitol building, and I’m hopeful we can all move forward together.”

ACLU lawyer Larry Dupuis said the settlement should resolve the ongoing friction that between July 24 and Sept. 6 led to near-daily mass arrests and 350 citations issued to 211 singalong participants.

“We’re really pleased with this informal notice requirement that should solve a problem that has been ongoing,” he said of the reservation system.

The singers have argued that the First Amendment and the Wisconsin Constitution allow them to protest without a permit — even though the U.S. Supreme Court has previously ruled that governments can regulate the time, place and manner of demonstrations.

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The loosely-affiliated group of singers, who say they have no structure or organization, additionally argued the state’s permitting process is problematic because protest participants must assume liability for individuals over whom they have no control.

Dupuis acknowledged “there was no real threat” that Singalong participants would be responsible for the behavior of others. But he said the settlement “takes away that fear.”

Assembly Speaker Robin Vos, R-Rochester, said Tuesday he hadn’t read the settlement, but he hopes it keeps with the principle that “people have a right to visit the Capitol, but you don’t have the right to take it over every day.”

“The whole point of what we want is just to be orderly,” Vos said. “And we think that every citizen should have the right to visit the Capitol in a way that doesn’t infringe on others’ ability to do the same thing.”

The current Capitol access policy was put in place in response to the tens of thousands of protesters who occupied the Capitol in 2011 after Walker proposed curbing public employee collective bargaining. It requires a permit for groups of four or more.

Last year Capitol Police, under the direction of Chief David Erwin, began issuing tickets to protesters who continued to regularly sing at the Capitol. That led ACLU-WI to file a federal lawsuit on behalf of Kissick, who participated in the singalong until police started issuing citations.

In his July 9 preliminary ruling, U.S. District Judge William Conley said the state can’t regulate groups of 20 or fewer, but left in place rules for larger groups.

After Conley’s ruling, Capitol Police began making arrests in the rotunda, though they haven’t made any since Sept. 6. A DOA spokeswoman declined to explain why the arrests stopped, saying the department doesn’t comment on police procedures.

Those cases will continue to be prosecuted, said Dana Brueck, a spokeswoman for the Justice Department.

“We believe that the ACLU’s acknowledgements support the view we’ve taken all along, which is that a permit requirement is constitutional,” Brueck said.

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Under the settlement, DOA must create a new policy for groups to use the Capitol, including the new reservation system. A Walker spokesman said Tuesday the governor has already approved an outline of the new rules, which include other changes, such as setting an acceptable decibel level for state buildings.

The reservation must be made at least two business days and no more than 10 business days before the event. The requester must provide details of the event including date, start and finish time, estimated number of attendees, and contact information for one or more people in the group.

DOA would not have to grant approval, but it would be able to make arrests if groups don’t follow the procedure or adhere to other building policies. For example, groups wanting to use sound equipment would still need to apply for a permit.

Groups could reserve the rotunda for up to five days, after which the group must renew its reservation. Permitted events or Capitol tours would have priority over a group that simply makes a reservation.

On Tuesday the singalong was held outside because of a scheduled event in the rotunda at noon. Participants expressed a mix of relief, skepticism and disapproval of the ACLU for what some said was a retreat from an absolute First Amendment defense.

“That was a poison pill that (some of the singers) won’t be willing to swallow,” Patricia Hammel, a lawyer representing several singers who received tickets, said of the compromise. “Overall it’s a huge improvement over what they’ve got now.”

Kissick said the settlement clarifies what he’s allowed to do under the law while protecting his constitutional right to petition the government.

“It’s not everything we wanted,” Kissick said. “But we gave ground and they gave ground. So I’m pretty happy about it.”

Jim Murray, another lawyer representing singers, called the agreement “silly.”

“This dopey requirement to have people phone in the obvious is a waste,” Murray said. “I don’t respect it as a good use of state resources to set this system up.”